This is a guest post from Henning Grosse Ruse - Khan
For a paper I have been working on (http://ssrn.com/abstract=2610576), I am looking for comments on applying GATT disciplines (such as Art.I, III, V and XI) as well as the General Exception rule in Art.XX d) to national IP protection and enforcement measures that go beyond the multilateral standards in TRIPS. Here is a brief explanation what it is about:
The role of IP rights for global trade is somewhat ambiguous. A lot would see international minimum standards in IP protection and enforcement as necessary element for cross-border trade in IP protected goods and services. That’s why we have TRIPS as a core pillar of the multilateral trading system. Traditionally however, GATT has perceived the territorially limited monopolies IP rights grant as a potential barrier to international trade which necessitated a carve-out in the General Exception rule Art.XX d). Similar concerns about the impact of national IP rights for the free movement of goods in the (then) EC led the ECJ to demand EC-wide parallel trade (regional exhaustion) and triggered an on-going harmonization of national IP laws in the EC. Globally, TRIPS has set core minimum standards for IP protection – but also contains important safeguards preventing barriers to legitimate trade.
Today’s reality of international IP protection and enforcement however is increasingly framed by unilateral, bilateral and regional standards of IP rule-making that go beyond the multilateral norms found in TRIPS and create a fragmented system of “TRIPS-plus” protection and enforcement of IP rights around the globe. My core argument is that the uncoordinated expansion of TRIPS-plus rules increasingly serves as a barrier to global trade. A case in point is the EC’s push for stronger protection of geographical indications (GIs, i.e. names such as Feta or Gorgonzola) in third countries with the effect that competitors from ‘new world countries’ (such as the US dairy industry) may find themselves prevented using these or similar terms when serving those markets (such as South Korea, Singapore, and some Latin American Countries with whom the EU signed FTAs). Other cases concern IP protection for news snippets, challenging the business models of search engines (such as Google News in Spain) – or IP enforcement at the border that does not offer a full range of defenses (such as proceedings at the US ITC where Apple faced exclusion orders although the patents it allegedly infringed had to be licensed on fair, reasonable and non-discriminatory terms).
Since a lot of business models and related international trade in goods and services relies on limits to or the absence of IP protection, the question is whether the WTO rules on IP (TRIPS) and those on trade in goods (GATT) are still fit to operate in such a changed environment. I would argue that TRIPS and GATT have to be applied in a way which facilitates harmonized, global maximum standards or ceilings for IP protection and enforcement as a necessary counterpart to the familiar minimum standards. These ceilings do exist in GATT and TRIPS, but have been under-used in the first 20 years of the WTO. There are good reasons for relying on them more extensively in an effort to mitigate the trade barriers resulting from uncoordinated expansion of TRIPS-plus rules in the last 15 or so years. In addition, in an ideal world, we would be aiming to introduce multilaterally agreed, more specific ceilings ensuring that reasonable limits to IP rights are available on a global scale.
